« ForrigeFortsett »
(145 N. E.) with the proviso omitted; but in the Crane, payment of a loan, and the bank, on vendor's Case the instruction ended with this sen- declaration of forfeiture, purchased the proptence: “This is the offense charged in the erty by payment of the balance due under the first count of the indictment." The reason
contract, the purchasers were not entitled to for holding the instruction bad in the Crane
a homestead as against the bank, since the Case was because of the last sentence in the bank. on protecting its rights, stood in the
place of the vendor. instruction. The statute now under consideration provides for two different offenses in 3. Subrogation emm 22-One who is compelled the first part of the act, which are, in sub to pay purchase money to protect his rights stance, the taking and attempting to take im stands in place of vendor. moral, improper, or indecent liberties with a One who is compelled to pay all the purchild of either sex under the age of 15 years, chase money to protect his rights under the with the intent aforesaid. The section also contract of purchase stands in the place of the includes other charges or crimes, and it was vendor. serious error in the Crane Case to inform 4. Pledges E51-Failure to require purchasthe jury that they were to understand that
erg assignee to foreclose on theory that asany one of the crimes named in the statute signment constituted a mortgage held immawas charged in the first count of the indict terial in view of decree giving purchasers opment. There is no such language in the in portunity to redeem. struction with which we are now dealing. Where purchasers' assignment of contract It was error to give the instruction that was complied with Conveyance Act, § 1, and was given in this case. Only the part of the executed for a valuable consideration, but wag statute pertaining to the crime charged in made as security for a note. and where the asthe indictment should have been quoted or signee purchased the land from vendor on vengiven in this instruction, but we regard it dor's declaration of forfeiture prior to maturity as harmless, because in this case the defend the contract, the failure of the court in an ac
of note. by payment of the balance due under ant was proved guilty of the completed crime tion involving the rights of the parties to reof taking indecent liberties, etc. In the quire the assignee to foreclose on theory that Crane Case it was matter of seriousness to the assignment was in effect a mortgage held tell the jury that the defendant would be immaterial, in view of decree giving purchasers guilty of taking indecent liberties, etc., if an opportunity to redeem, thereby treating it the evidence should show that he only at as a pledge. tempted to take such indecent liberties and 5. Payment 16(1)-Execution of note in in that attempt was thwarted. The punish
place of existing obligation does not satisfy ment for all of the offenses described in the obligation unless made and accepted as paystatute is one and the same, but they are not ment. the same crime. The crime charged in this The giving of a note in the place of an excase was proved. The instruction, therefore, isting obligation does not of itself operate as in this case contained mere surplusage, which a satisfaction of the original obligation unless had no effect to prejudice the rights of the made and accepted as payment thereof. defendant.
6. Vendor and purchaser em 180Whether note The judgment of the criminal court is af
was accepted as payment of installment held firmed.
question of fact depending on intention of Judgment afirmed.
Whether plaintiff's note to vendor was given and accepted as payment of installment held a
question of fact depending upon the intention (314 III. 226)
of the parties. BAKER et al. V. SALZENSTEIN et al. 7. Vendor and purchaser em 93—Nonpayment (No. 14716.)
of note accepted in payment of installment
not ground for forfeiture of rights under (Supreme Court of Illinois. Oct. 20, 1924. Pe
contract. tition for Rehearing Stricken Dec. 3, 1924.) Where purchaser's note is made and accept
ed by vendor as payment of installment, the 1. Homestead 96—Purchaser in possession original obligation is satisfied, and the vendor not entitled to homestead as against vendor. cannot declare a forfeiture for purchaser's
An occupant of land under a contract of failure to pay note when due. purchase is not entitled to a homestead as 8. Vendor and purchaser Om 93—Cancellation against his vendor.
of note accepted in payment of installment 2. Homestead 96—Purchasers in possession
would entitle vendor to declare forfeiture for not entitled to homestead as against pledgee nonpayment of installments. of contract following pledgee's payment of Where purchaser's note was accepted by balance due under contract following vendor's vendor in payment of installment due under declaration of forfeiture.
contract, the subsequent cancellation of the Where purchasers in possession of land as note did not entitle vendor to declare a for. signed the contract to a bank to secure the l feiture for nonpayment of installments.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
9. Vendor and purchaser em 180—Vendor's ro- , rectly in controversy, but as to all matters
ceipt held to show acceptance of note in pay- germane thereto, though some rights may be ment of installments.
legal. Vendor's receipt stating that note was given Farmer, J., dissenting. "to satisfy installment due March 1, 1921, and prior year," held to show that the note was Error to Circuit Court, Sangamon County: given by purchasers and accepted by vendor in Frank W. Burton, Judge. payment of the installments, precluding vendor from declaring a forfeiture for nonpayment
Bill by Harry Baker and others against thereof.
Emanuel Salzenstein and others. Decree for
defendants, and plaintiffs bring error. Re 10. Equity Cm 423—Relief granted as law and versed and remanded, with directions. facts demand at time of entry of decree. While in suit at law rights of parties are
F. P. Drennan and W. J. Lawler, both of determined as of time of beginning of suit, eq- Springfield, for plaintiffs in error. uity will grant such relief as the nature of the Thomas D. Masters and Walter T. Day, case and the law and the facts demand at time both of Springfield, for defendants in error. decree is entered. II. Equity E39(1)-Will retain case to do
HEARD, J. Plaintiffs in error on Februcomplete justice between parties.
ary 19, 1922, filed their bill in the circuit Equity, having acquired jurisdiction, will re
court of Sangamon county for an injunction tain case to do complete justice between the restraining defendants in error from prosparties.
ecuting an action in forcible entry and de12. Pledges Om51-Court in holding purchas. county, and a temporary injunction was is
tainer before a justice of the peace of that ers' pledgee, who purchased land on vendor's sued in accordance with the prayer therefor. declaration of forfeiture, subrogated to ven. dor's rights, could provide in decree for pay. Smith was the owner of about 240 acres of
It appears that in October, 1917, Elbert S. ment to pledgee of amount due. Where purchasers assigned contract to se
land in said county, and on the 25th day of cure loan, and assignee, on vendor's declaration that month entered into a contract with the of forfeiture, purchased property by payment plaintiffs in error, Harry Baker and his faof amount which vendors claimed to be due, ther, Frank Baker, for the sale of the land for court of equity, in holding that purchasers were the price of $45,000, $1,000 to be paid in cash, not in default and that assignee merely ac- $3,500 March 1, 1918, $2,000 (above interest quired vendor's rights, properly decreed that on deferred payments) on March 1, 1919, and purchasers pay assignee amount due from pur- not less than $3,000 (above interest on dechasers on contract, and amount, if any, then ferred payments) on the 1st day of each due by reason of assignments and providing for forfeiture of purchasers' title and interest March thereafter until the sum of $20,000 on on default in payment thereof, but erred in in the principal was paid; that then a deed was cluding amount of loan not yet due.
to be made out to the purchasers and a ven
dor's lien reserved therein or mortgage made 13. Pledges On 51-Purchasers' pledgee, subro. for the balance. The contract contained this
gated to rights of vendor on vendor's dec- clause:
"Should said purchasers fail to perform this accepted by vendor for installment, but not contract on their part at the time and in the to inclusion thereof in amount required for manner herein specified, the earnest money redemption.
paid, as above shall, at the option of the venWhere purchasers assigned contract to se dor, be forfeited as liquidated damages, includcure loan, and assignee, on vendor's declara- ing commission payable by the vendor, and this tion of forfeiture, purchased property by pay
contract shall become null and void. Time is ment of amount which vendor claimed to be of the essence of this contract and of all the due, court of equity, on holding that purchasers
conditions thereof." were not in default and that assignee merely Under this contract Harry and Frank Bakacquired vendor's rights, and providing for re- er, together with their families, took posses. demption by purchaser on payment to assignee of amount due on contract at time of rendi- sion of the premises and farmed the same tion of decree, could not include amount of thereafter. It appears that the Bakers were unpaid note, which vendor had accepted in pay- at times in arrears with the payments proment of installment, but should give assignee vided for in the contract, and that the same money decree therefor, with award of execu- were made by special arrangements by givtion.
ing notes to the vendor. From time to time 14. Equity E39(2)-Having acquired juris- after making the contract Harry Baker bor
diction will determine all rights, including rowed money from the defendant in error the those in nature of legal rights otherwise not Commercial Trust & Savings Bank of Springenforceable outside of court of law.
field, which loans by the month of June, Equity having acquired jurisdiction for one 1921, amounted to $8,500. On the 9th day of purpose has jurisdiction for all purposes and that month he was desirous of securing a will do complete justice and determine all further loan of $5,500. The bank declined rights, not only with reference to matters di- to advance the additional sum without addi.
em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(145 N.E.) tional security for the same and the amount plaintiffs in error by valid conveyance asalready borrowed. Harry Baker then rep- signed the contract to the bank as security resented to the bank that he had an interest for such loan, and that the unpaid sums on in the land in question, and offered to assign the contract, with the loan, amounted to the his contract and his right in the land for the sum of $22,120.15. The decree directed that, purpose of securing the amounts advanced unless the plaintiffs in error, or some one or and the loan then sought. He also offered to more of them, pay said sum on a short day give a chattel mortgage on his growing crops, therein fixed by the court, the trustee of the farm machinery, and live stock. This loan bank should be put into immediate possesof $14,000 was effected by the bank taking sion, and that in case they did make such his note for $14,000 secured by a chattel payments they should have the right to conmortgage dated June 10, 1921, and due one tinue the future payments under the contract year after date, and on the 18th day of June to the bank as holder of the legal title by reaHarry Baker and Kate Baker executed an son of the conveyance from the original venassignment of their rights under the contract dor. Plaintiffs in error prayed an appeal, of purchase. This the record shows was as which was allowed on filing a bond in the a further security for the loan of $14,000. sum of $30,000. Failing to file such bond On presentation of the contract entered into within the time decreed by the court, they by Harry Baker and his father, Frank Bak- bring the cause here by writ of error. er, as vendees, it was discovered that Frank Plaintiffs in error, aside from their conBaker had assigned all interest which he tention that the vendor did not have the bad in the contract to Kate Baker, his wife. right of forfeiture when he attempted to deFor this reason she signed the assignment of. clare the same, nor at the time they filed the contract to the bank. It also appears their bill (which contentions will be hereinthat in March, 1921, the payment under the after considered), also urge that it was uncontract, amounting to $3,000, was not paid necessary for the defendant in error bank to when due. There were also interest and pay the vendor, Smith, the whole of the unother charges, amounting to $2,442, which paid purchase price in order to protect itself were unpaid, and on April 23, 1921, Harry under the assignment. The chancellor found, Baker paid $3,000 and gave his note to the as a matter of fact, that such purchase was vendor for the sum of $2,442. This note was necessary, and his finding appears to be supdue in 60 days, but was not paid, and on No-ported by the record. vember 1, 1921, the vendor served notice that [1-3] Plaintiffs in error contend that the he had elected to declare the contract for- assignment was not valid for the reason that feited for failure to make the payments due they had a homestead interest in the land on March 1, 1921, and demanded possession which was not assigned, as the assignment of the premises on January 1, 1922. The ven was not signed by the husband of Kate Bakdor thereafter sold the premises to the de- er or the wife of Harry Baker. An occupant fendant in error bank and conveyed the same of land under a contract of purchase is not by quitclaim deed for the balance due and entitled to homestead as against his vendor. unpaid on the contract and on said $2,442 Stafford v. Woods, 144 Ill. 203, 33 N. E. 539; note, amounting to $37,213.85. This sum was Watson v Saxer, 102 Ill. 585; Allen v. Hawpaid by the bank, the deed being executed to ley, 66 Ill. 164; Hurd's Rev. St. 1921, c. 52, 8 Emanuel Salzenstein as trustee for the bank. 3. Plaintiffs in error concede this to be true
Previous to notice of forfeiture of the con so far as the original vendor is concerned, tract by the vendor, Frank and Harry Baker, but contend that trustee Salzenstein does not in October, 1921, filed their voluntary peti- stand in the same relation to the contract. tions in bankruptcy in the federal court and The rule is that any one who is compelled to were adjudged bankrupts. They remained, pay all the purchase money to protect his however, in possession of this farm until the rights under the contract of purchase stands proceedings to evict them by forcible entry in the place of the vendor. Blue v. Blue, 38 and detainer were started. On February 20, | Ill. 9, 87 Am. Dec. 267. 1922, the day before the hearing on the forci  It is also urged that the assignment of ble entry and detainer suit, they filed a bill plaintiffs in error to the bank was not valid in this case for injunction. Salzenstein, as as an assignment, but as a mortgage, and trustee, filed his answer thereto, and also his that the bank should have proceeded to forecross-bill, praying that the whole proceedings close the mortgage. While the assignment in be passed upon and the rights of the parties question complies with section 1 of the Conbe adjudicated with reference to the posses- veyance Act (Hurd's Rev. St. 1921, c. 30, 8 sion of the premises, and praying immediate 1), and was executed for a valuable considpossession thereof. The issues were made up eration, it was, as the record shows, executed and the cause heard by the chancellor in and delivered as a security for the payment open court, who rendered a decree reciting of the note, which was not due by its terms findings of fact, and holding that Salzen- at the time of the purchase of the vendor's stein, as trustee, was owner of the premises; | interest by the bank. The court, however, that the plaintiffs in error were indebted to gave the assignors opportunity to redeem this the defendant in error bank in the sum of contract, thereby treating it as a pledge. $14,000, money loaned and due; that the [5-7] Plaintiffs in error make the further
contention that the note for $2,442 given to , The language for which the note is gren, the vendor, Smith, was, with the payment of “to satisfy installment due March 1, 1921, the $3,000 made on April 23, 1921, a payment and prior year," is clear and unambiguous, in full of all charges due on the contract up and plainly shows the intention to accept the to March 1, 1921, including interest, and note in payment of the amount due under the that when the vendor served notice that he contract. This being true, the cancellation of had elected to forfeit the contract for fail- the note could not reinstate the claim for ure to make the payment due on March 1, amount due March 1, 1921, as an unpaid in1921, and demanded possession, he was whol- stallment under the contract. The vendor ly without right to declare the contract for- therefore had no right, at the time he defeited; that the note was given and accept-clared a forfeiture, to do so, and at the time ed as a discharge of the March 1, 1921, pays of the filing of the bill herein, no installment ment; that since the forfeiture was attempt- having in the meantime become due, plained prior to the accruing of another payment tiffs in error were entitled to the injunction on the contract it was declared without prayed. right; and that, as the bill in this case was  While in a suit at law the rights of filed on February 19, 1922, no further pay- the parties are determined as of the time ments had become due, and plaintiffs in er- of the beginning of the suit, a decree in ror at the time of the filing of the bill were chancery is a determination of the rights entitled to the relief prayed. The rule in of the parties to the suit according to equity this state is that the giving of a promissory and good conscience, and where relief is note in the place of an already existing ob- granted by a decree in equity it is such as ligation does not, of itself, operate as a sat- the nature of the case, the law and the facts isfaction of the original obligation unless it demand, not at the time of the inception of is made and accepted as payment thereof. the litigation but at the time the decree is Whether or not it was so given and accept- entered therein. Superior Oil & Gas Co. v. ed is a question of fact which depends upon Mehlin, 25 Okl. 809, 108 Pac. 545, 138 Am. the intention of the parties. Boulter v Joli- St. Rep. 942; Randel v. Brown, 43 U. S. et Nat. Bank, 295 Ill. 594, 129 N. E. 513. If (2 How.) 406, 11 L. Ed. 318; Peck v. Goodsuch note is made and accepted for such berlett, 109 N. Y. 180, 16 N. E. 350; 10 R. purpose, the former obligation is satisfied. C.' L. 559. The decree in this case was enBelleville Savings Bank v. Bornman, 124 mil. tered April 17, 1922. By the contract in 200, 16 N. E. 210; Jansen v. Grimshaw, 125 evidence a payment of $3,000, with interest ni. 468, 17 N E. 850.
upon deferred payments, amounting to $1,625, It is not denied that the note for $2.442 was became due March 1, 1922, which payment not paid when due, but it is contended that had not been made at the time of the renthat fact did not give the vendor a right to dition of the decree. declare a forfeiture. If the note was made and accepted as payment of the sum due where there is any ground of equity juris
[11, 12] It is the doctrine of equity that March 1, 1921, under the terms of the con- diction, a court of equity having acquired tract, this is true. That question was a ques- equitable jurisdiction to grant equitable retion of fact.
lief will retain the case to do complete jus[8, 9] Defendants in error argue that there tice between the parties. Miller v. Rowan, was no intention on the part of the vendor to accept the note in payment of the amount 251 Ill. 344, 96 N. E. 285; McIntyre v. Me due under the contract, and that this is Intyre, 287 III. 544, 122 N. E. 824. It was shown by the fact that the note of April 23, therefore proper for the court, in order to do 1921, was canceled. Whether or not the note complete justice between the parties, to re
quire plaintiffs in error, in accordance with was, after its delivery and acceptance, can
the defendants in error's cross-bill, within celed is not material in determining the ques.
a short day fixed by the court, to pay to tion as to how and for what purpose it was made and accepted.
defendants in error any amounts due and The record shows that on April 23, when unpaid upon the contract of purchase. by the note was executed and the sum of $3,000 plaintiff in error at the time of the rencash was paid, the vendor executed and de- dition of the decree, and such amount, if livered the following receipt :
any, as was then due from plaintiffs in er
ror to defendants in error by reason of the “April 23, 1921.
assignment from plaintiffs in error to defend"Received of Harry Baker $3,000, to apply ants in error within a time found by the on contract dated Oct. 25, 1917, for purchase court, and to decree that in default of such of land in Talkington township, balance of past payment all plaintiffs in error's right, title, installments now past due, with interest thereon, $2,442, for which note is given to satisfy and interest under the terms of such contract installment due March 1, 1921, and prior year.” should in equity be forfeited and the legal
and equitable title to the real estate de It seems clear from the language of this clared vested in Salzenstein as trustee, he receipt that it was the purpose of the vendor being vested with all the rights which Smith to accept the note in payment of the amount originally had under the contract of October due on March 1, 1921, under the contract. / 25, 1917.
(145 N. E.)  The court included in the amount | manded to the circuit court of Sangamon which it required plaintiffs in error to pay county, with directions to enter a decree to defendants in error the amount of the note requiring plaintiffs in error to pay to or for payable to the Commercial Trust & Savings the use of the Commercial Trust & Savings Bank of Springfield, to secure which the Bank of Springfield such sum as such court assignment was made, which note, according may find to be due from plaintiffs in error, to the evidence, was not then due. At the if any, by virtue of the contract of purchase time of such assignment of the premises from Smith, and also directing plaintiff in possession was not delivered by plaintiffs in error Harry Baker to pay such sum, if any, error, nor by the terms of the contract were as may be found due by virtue of the inthey under any obligation to deliver up debtedness secured by the assignment from possession of such premises prior to de- plaintiffs in error to Salzenstein within a fault in paying the note after it became due, short day to be fixed by the court, and and the court should not have included the that in the event of the failure to so pay amount of such note, prior to its becoming said sum of money within the time fixed by due, in the amount which it required plain- the court, all their right, title, and interest tiffs in error to pay to redeem the premises. under the terms of the vendor's contract be
(14) The court also included in the amount in equity forfeited, and the legal and equirequired for redemption the amount of the table title to said real estate declared to be note for $2,442 and interest, heretofore men- vested in the holder of the legal title, Saltioned. As we have seen, this note was not zenstein, in trust for the use and benefit of a note given in pursuance of the contract of the Commercial Trust & Savings Bank of purchase for the real estate, but was a Springfield, and, if in the meantime plainnote given as a payment upon such con- tiffs in error have been dispossessed of said tract price. It was not secured by a ven- premises, that they be restored to the posdor's lien, nor was it in any other manner session thereof upon making such payments, a lien upon the premises in question, and and that the court enter a money decree in should not have been included in the amount favor of Salzenstein, for the use and benefit required for redemption by the decree. of the bank, for the amount, if any, found While at the time of the transfer of the due upon the $2,442 note, with award of expremises from Smith to Salzenstein this note ecution therefor. for $2,442 was not assigned by Smith to
Reversed and remanded, with directions. Salzenstein, but was by Smith marked canceled, and it remained in his possession up
FARMER, J., dissents. to the time of the trial, the evidence shows that the amount of this note and interest were included in the amount paid to Smith,
(314 III. 213) and that it was the intention of the parties that all claims which Smith had against
BALEY V, STRAHAN et al. (No. 15911.) plaintiffs in error should be included in the (Supreme Court of Illinois. Oct. 28, 1924. Repurchase. Salzenstein, as trustee for the
hearing Denied Dec. 4, 1924.) bank, therefore became the equitable owner of the note in question, and the note, al. 1. Wills Ow470—Intent in any particular prothough not directly involved therein, was a vision, as ascertained from whole will, given matter germane to the litigation; and it is effect, if legally possible. likewise a well-known rule that when a
Court will consider will and all its parts court of equity acquires jurisdiction for in relation to each other, to ascertain testator's one purpose it acquires it for all purposes, intent in any particular provision, and give efand will do full and complete justice between fect to such intent, if possible, consistently
with law. all the parties and determine all their rights, not only with reference to the matters di- 2. Remainders w41/2-Particular estate and rectly in controversy, but as to all matters remainder may vest at same time and subgermane thereto. It makes no difference
sist together. that some of these rights may be in the na
Term “remainder" is relative, and implies ture of legal rights which otherwise could prior disposition of some part of estate, but not be enforced outside of a court of law. whole, are carved out of same inheritance, and
particular estate and remainder constitute one Wehrheim v. Smith, 226 Ill. 346, 80 N. E. may both vest at same time and subsist to908; 10 R. C. L. 370. While defendants in gether. error were not entitled to have the amount
3. Wills Cwm 634(16)-Effect of condition preof this note included in the amount required
cedent and condition subsequent stated. for redemption, they were entitled in this
If condition to which estate in remainder action to a money decree for the same, with is subject is subsequent, estate vests immediaward of execution.
ately, subject to be divested by happening of For the errors indicated the decree of the condition; but, if precedent, remainder cannot circuit court is reversed, and the cause re vest until contingency has happened.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes